Exhibit 99.4


 


EXPORT-IMPORT BANK OF THE UNITED STATES

WORKING CAPITAL GUARANTEE PROGRAM


 


BORROWER AGREEMENT


 

















 


TABLE OF CONTENTS


 


	
  ARTICLE I 

  	
  DEFINITIONS

  	
   

  	
  1

  
	
   

  	
   

  	
   

  	
   

  
	
  1.01

  	
  Definition of Terms

  	
   

  	
  1

  
	
   

  	
   

  	
   

  	
   

  
	
  1.02

  	
  Rules of Construction

  	
   

  	
  14

  
	
   

  	
   

  	
   

  	
   

  
	
  1.03

  	
  Incorporation of Recitals

  	
   

  	
  15

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE
  II

  	
  OBLIGATIONS
  OF BORROWER

  	
   

  	
  15

  
	
   

  	
   

  	
   

  	
   

  
	
  2.01

  	
  Use of Credit Accommodations

  	
   

  	
  15

  
	
   

  	
   

  	
   

  	
   

  
	
  2.02

  	
  Security Interests

  	
   

  	
  15

  
	
   

  	
   

  	
   

  	
   

  
	
  2.03

  	
  Loan Documents and Loan Authorization Agreement

  	
   

  	
  16

  
	
   

  	
   

  	
   

  	
   

  
	
  2.04

  	
  Export-Related Borrowing Base Certificates and
  Export Orders

  	
   

  	
  16

  
	
   

  	
   

  	
   

  	
   

  
	
  2.05

  	
  Schedules, Reports and Other Statements

  	
   

  	
  16

  
	
   

  	
   

  	
   

  	
   

  
	
  2.06

  	
  Exclusions from the Export-Related Borrowing Base

  	
   

  	
  16

  
	
   

  	
   

  	
   

  	
   

  
	
  2.07

  	
  Borrowings and Reborrowings

  	
   

  	
  17

  
	
   

  	
   

  	
   

  	
   

  
	
  2.08

  	
  Repayment Terms

  	
   

  	
  17

  
	
   

  	
   

  	
   

  	
   

  
	
  2.09

  	
  Financial Statements

  	
   

  	
  17

  
	
   

  	
   

  	
   

  	
   

  
	
  2.10

  	
  Additional Security or Payment

  	
   

  	
  17

  
	
   

  	
   

  	
   

  	
   

  
	
  2.11

  	
  Continued Security Interest

  	
   

  	
  18

  
	
   

  	
   

  	
   

  	
   

  
	
  2.12

  	
  Inspection of Collateral and Facilities

  	
   

  	
  18

  
	
   

  	
   

  	
   

  	
   

  
	
  2.13

  	
  General Intangibles

  	
   

  	
  19

  
	
   

  	
   

  	
   

  	
   

  
	
  2.14

  	
  Economic Impact Approval

  	
   

  	
  19

  
	
   

  	
   

  	
   

  	
   

  
	
  2.15

  	
  Indirect Exports

  	
   

  	
  19

  
	
   

  	
   

  	
   

  	
   

  
	
  2.16

  	
  Overseas Inventory and Accounts Receivable

  	
   

  	
  20

  
	
   

  	
   

  	
   

  	
   

  
	
  2.17

  	
  Country Limitation Schedule

  	
   

  	
  21

  
	
   

  	
   

  	
   

  	
   

  
	
  2.18

  	
  Notice of Certain Event

  	
   

  	
  21

  
	
   

  	
   

  	
   

  	
   

  
	
  2.19

  	
  Insurance

  	
   

  	
  22

  
	
   

  	
   

  	
   

  	
   

  
	
  2.20

  	
  Taxes

  	
   

  	
  22

  
	
   

  	
   

  	
   

  	
   

  
	
  2.21

  	
  Compliance with Laws

  	
   

  	
  22

  
	
   

  	
   

  	
   

  	
   

  
	
  2.22

  	
  Negative Covenants

  	
   

  	
  22

  
	
   

  	
   

  	
   

  	
   

  
	
  2.23

  	
  Cross Default

  	
   

  	
  22

  
	
   

  	
   

  	
   

  	
   

  
	
  2.24

  	
  Munitions List

  	
   

  	
  22

  
	
   

  	
   

  	
   

  	
   

  
	
  2.25

  	
  Suspension and Debarment, etc

  	
   

  	
  22

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE
  III

  	
  RIGHTS AND REMEDIES

  	
   

  	
  23

  



 


i

















 


	
  3.01

  	
  Indemnification

  	
   

  	
  23

  
	
   

  	
   

  	
   

  	
   

  
	
  3.02

  	
  Liens

  	
   

  	
  23

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE
  IV

  	
  MISCELLANEOUS

  	
   

  	
  24

  
	
   

  	
   

  	
   

  	
   

  
	
  4.01

  	
  Governing Law

  	
   

  	
  24

  
	
   

  	
   

  	
   

  	
   

  
	
  4.02

  	
  Notification

  	
   

  	
  24

  
	
   

  	
   

  	
   

  	
   

  
	
  4.03

  	
  Partial Invalidity

  	
   

  	
  24

  
	
   

  	
   

  	
   

  	
   

  
	
  4.04

  	
  Waiver of Jury Trial

  	
   

  	
  24

  
	
   

  	
   

  	
   

  	
   

  
	
  4.05

  	
  Consequential Damages

  	
   

  	
  24

  



 


ii

















 


EXPORT-IMPORT BANK OF THE UNITED STATES

WORKING CAPITAL GUARANTEE PROGRAM

BORROWER AGREEMENT


 


THIS
BORROWER AGREEMENT (this “Agreement”) is made and entered into by the entity
identified as Borrower on the signature page hereof (“Borrower”) in favor
of the Export-Import Bank of the United States (“Ex-Im Bank”) and the
institution identified as Lender on the signature page hereof (“Lender”).


 


RECITALS


 


Borrower
has requested that Lender establish a Loan Facility in favor of Borrower for
the purposes of providing Borrower with working capital to finance the
manufacture, production or purchase and subsequent export sale of Items.


 


Lender
and Borrower expect that Ex-Im Bank will provide a guarantee to Lender
regarding this Loan Facility subject to the terms and conditions of the Master
Guarantee Agreement, a Loan Authorization Agreement, and to the extent
applicable, the Delegated Authority Letter Agreement or Fast Track Lender
Agreement.


 


Lender
and Ex-Im Bank have requested that Borrower execute this Agreement as a
condition precedent to Lender establishing the Loan Facility and Ex-Im Bank
providing the guarantee.


 


NOW,
THEREFORE, Borrower hereby agrees as follows:


 


ARTICLE I


DEFINITIONS


 


1.01         Definition of Terms. As used in
this Agreement, including the Recitals to this Agreement and the Loan
Authorization Agreement, the following terms shall have the following meanings:


 


“Accounts
Receivable” shall mean all of Borrower’s now owned or hereafter acquired (a) “accounts”
(as such term is defined in the UCC), other receivables, book debts and other
forms of obligations, whether arising out of goods sold or services rendered or
from any other transaction; (b) rights in, to and under all purchase
orders or receipts for goods or services; (c) rights to any goods
represented or purported to be represented by any of the foregoing (including
unpaid sellers’ rights of rescission, replevin, reclamation and stoppage in
transit and rights to returned, reclaimed or repossessed goods); (d) moneys
due or to become due to such Borrower under all purchase orders and contracts
(which includes Export Orders) for the sale of goods or the performance of
services or both by Borrower (whether or not yet earned by performance on the
part of Borrower), including the proceeds of the foregoing; (e) any notes,
drafts, letters of credit, insurance proceeds or other instruments, documents
and writings evidencing or supporting the foregoing; and (f) all collateral
security and guarantees of any kind given by any other Person with respect to
any of the foregoing.


 

















 


“Accounts
Receivable Aging Report” shall mean a report detailing the Export-Related
Accounts Receivable and Export-Related Overseas Accounts Receivable for a Loan
Facility, and the applicable terms for the relevant time period; in the case of
Indirect Exports, such report shall indicate the portion of such Accounts
Receivables corresponding to Indirect Exports.


 


“Advance
Rate” shall mean, with respect to a Loan Facility, the rate specified in Section 5.C.
of the Loan Authorization Agreement for each category of Primary Collateral
except for Export-Related General Intangibles and Other Collateral. Unless
otherwise set forth in writing by Ex-Im Bank, in no event shall the Advance
Rate exceed (i) ninety percent (90%) for Eligible Export-Related Accounts
Receivable, (ii) seventy five percent (75%) for Eligible Export-Related
Inventory, (iii) seventy percent (70%) for Eligible Export-Related
Overseas Accounts Receivable or (iv) sixty percent (60%) for Eligible
Export-Related Overseas Inventory and (v) twenty five percent (25%) for
Retainage Accounts Receivable.


 


“Affiliated
Foreign Person” shall have the meaning set forth in Section 2.15.


 


“Business
Day” shall mean any day on which the Federal Reserve Bank of New York is open
for business.


 


“Buyer”
shall mean a Person that has entered into one or more Export Orders with
Borrower or who is an obligor on Export-Related Accounts Receivable or
Export-Related Overseas Accounts Receivable.


 


“Capital
Good” shall mean a capital good (e.g., manufacturing equipment, licensing
agreements) that will establish or expand foreign production capacity of an
exportable good.


 


“Collateral”
shall mean all real and personal property and interest in real and personal
property in or upon which Lender has been, or shall be, granted a Lien as
security for the payment of all the Loan Facility Obligations and all products
and proceeds (cash and non-cash) thereof.


 


“Commercial
Letters of Credit” shall mean those letters of credit subject to the UCP
payable in Dollars and issued or caused to be issued by Lender on behalf of
Borrower under a Loan Facility for the benefit of a supplier(s) of
Borrower in connection with Borrower’s purchase of goods or services from the
supplier in support of the export of the Items.


 


“Country
Limitation Schedule” shall mean the schedule published from time to time by
Ex-Im Bank setting forth on a country by country basis whether and under what
conditions Ex-Im Bank will provide coverage for the financing of export
transactions to countries listed therein.


 


“Credit
Accommodation Amount” shall mean, the sum of (a) the aggregate outstanding
amount of Disbursements and (b) the aggregate outstanding Letter of Credit
Obligations, which sum may not exceed the Maximum Amount.


 


“Credit
Accommodations” shall mean, collectively, Disbursements and Letter of Credit
Obligations.


 


2

















 


“Debarment
Regulations” shall mean, collectively, (a) the Governmentwide Debarment
and Suspension (Nonprocurement) regulations (Common Rule), 53 Fed. Reg. 19204 (May 26,
1988), (b) Subpart 9.4 (Debarment, Suspension, and Ineligibility) of the
Federal Acquisition Regulations, 48 C.F.R. 9.400-9.409 and (c) the revised
Governmentwide Debarment and Suspension (Nonprocurement) regulations (Common
Rule), 60 Fed. Reg. 33037 (June 26, 1995).


 


“Delegated
Authority Letter Agreement” shall mean the Delegated Authority Letter
Agreement, if any, between Ex-Im Bank and Lender.


 


“Disbursement”
shall mean, collectively, (a) an advance of a working capital loan from
Lender to Borrower under the Loan Facility, and (b) an advance to fund a
drawing under a Letter of Credit issued or caused to be issued by Lender for
the account of Borrower under the Loan Facility.


 


“Dollars”
or “$” shall mean the lawful currency of the United States.


 


“Economic
Impact Approval” shall mean a written approval issued by Ex-Im Bank stating the
conditions under which a Capital Good may be included as an Item in a Loan
Facility consistent with Ex-Im Bank’s economic impact procedures (or other
mechanism for making this determination that Ex-Im Bank notifies Lender of in
writing).


 


“Economic
Impact Certification” shall have the meaning set forth in Section 2.14(b).


 


“Effective
Date” shall mean the date on which (a) all of the Loan Documents have been
executed by Lender, Borrower and, if applicable, Ex-Im Bank and (b) all of
the conditions to the making of the initial Credit Accommodations under the
Loan Documents or any amendments thereto have been satisfied.


 


“Eligible
Export-Related Accounts Receivable” shall mean Export-Related Accounts
Receivable which are acceptable to Lender and which are deemed to be eligible
pursuant to the Loan Documents, but in no event shall Eligible Export-Related
Accounts Receivable include any Account Receivable:


 


(a)           that does not arise
from the sale of Items in the ordinary course of Borrower’s business;


 


(b)           that is not
subject to a valid, perfected first priority Lien in favor of Lender;


 


(c)           as to which any
covenant, representation or warranty contained in the Loan Documents with
respect to such Account Receivable has been breached;


 


(d)           that is not
owned by Borrower or is subject to any right, claim or interest of another
Person other than the Lien in favor of Lender;


 


(e)           with respect to
which an invoice has not been sent;


 


(f)            that arises
from the sale of defense articles or defense services;


 


3

















 


(g)           that arises
from the sale of Items to be used in the construction, alteration, operation or
maintenance of nuclear power, enrichment, reprocessing, research or heavy water
production facilities unless with Ex-Im Bank’s prior written consent;


 


(h)           that is due and
payable from a Buyer located in a country with which Ex-Im Bank is prohibited
from doing business as designated in the Country Limitation Schedule;


 


(i)            that does not
comply with the requirements of the Country Limitation Schedule;


 


(j)            that is due and
payable more than one hundred eighty (180) days from the date of the invoice;


 


(k)           that is not
paid within sixty (60) calendar days from its original due date, unless it is
insured through Ex-Im Bank export credit insurance for comprehensive commercial
and political risk, or through Ex-Im Bank approved private insurers for
comparable coverage, in which case it is not paid within ninety (90) calendar
days from its due date;


 


(l)            of a Buyer for
whom fifty percent (50%) or more of the Accounts Receivable of such Buyer do
not satisfy the requirements of subclauses (j) and (k) above;


 


(m)          that arises
from a sale of goods to or performance of services for an employee of Borrower,
a stockholder of Borrower, a subsidiary of Borrower, a Person with a
controlling interest in Borrower or a Person which shares common controlling
ownership with Borrower;


 


(n)           that is backed
by a letter of credit unless the Items covered by the subject letter of credit
have been shipped;


 


(o)           that Lender or
Ex-Im Bank, in its reasonable judgment, deems uncollectible for any reason;


 


(p)           that is due and
payable in a currency other than Dollars, except as may be approved in writing
by Ex-Im Bank;


 


(q)           that is due and
payable from a military Buyer, except as may be approved in writing by Ex-Im
Bank;


 


(r)            that does not
comply with the terms of sale set forth in Section 7 of the Loan
Authorization Agreement;


 


(s)           that is due and
payable from a Buyer who (i) applies for, suffers, or consents to the
appointment of, or the taking of possession by, a receiver, custodian, trustee
or liquidator of itself or of all or a substantial part of its property or
calls a meeting of its creditors, (ii) admits in writing its inability, or
is generally unable, to pay its debts as they become due or ceases operations
of its present business, (iii) makes a general assignment for the benefit
of creditors, (iv) commences a voluntary case under any state or federal
bankruptcy laws (as now or hereafter in effect), (v) is adjudicated as
bankrupt or insolvent, (vi) files a petition seeking to take advantage of
any other law providing for the relief of debtors, (vii) acquiesces to, or
fails to have


 


4

















 


dismissed,
any petition which is filed against it in any involuntary case under such
bankruptcy laws, or (viii) takes any action for the purpose of effecting
any of the foregoing;


 


(t)            that arises
from a bill-and-hold, guaranteed sale, sale-and-return, sale on approval,
consignment or any other repurchase or return basis or is evidenced by chattel
paper;


 


(u)           for which the
Items giving rise to such Accounts Receivable have not been shipped to the
Buyer or when the Items are services, such services have not been performed or
when the Export Order specifies a timing for invoicing the Items other than
shipment or performance and the Items have not been invoiced in accordance with
such terms of the Export Order, or the Accounts Receivable otherwise do not
represent a final sale;


 


(v)           that is subject
to any offset, deduction, defense, dispute, or counterclaim or the Buyer is
also a creditor or supplier of Borrower or the Account Receivable is contingent
in any respect or for any reason;


 


(w)          for which
Borrower has made any agreement with the Buyer for any deduction therefrom,
except for discounts or allowances made in the ordinary course of business for
prompt payment, all of which discounts or allowances are reflected in the
calculation of the face value of each respective invoice related thereto;


 


(x)            for which any
of the Items giving rise to such Account Receivable have been returned,
rejected or repossessed;


 


(y)           that is
included as an eligible receivable under any other credit facility to which
Borrower is a party;


 


(z)            any of the
Items giving rise to such Accounts Receivable are Capital Goods, unless the
transaction is in accordance with Section 2.14;


 


(aa)         that is due and
payable from a Buyer that is, or is located in, the United States; provided
however, that this subsection (aa) shall not preclude an Export-Related
Accounts Receivable arising from the sale of Items to foreign contractors or
subcontractors providing services to a United States Embassy or the United
States Military located overseas from being deemed an Eligible Export-Related
Accounts Receivable; or


 


(bb)         that  arises  from  the  sale  of  Items  that  do  not  meet  the  U.S.  Content  requirements  in  accordance  with  Section 2.01(b)(ii).


 


“Eligible
Export-Related Inventory” shall mean Export-Related Inventory which is
acceptable to Lender and which is deemed to be eligible pursuant to the Loan
Documents, but in no event shall Eligible Export-Related Inventory include any
Inventory:


 


(a)           that is not
subject to a valid, perfected first priority Lien in favor of Lender;


 


(b)           that is located
at an address that has not been disclosed to Lender in writing;


 


5

















 


(c)           that is placed
by Borrower on consignment or held by Borrower on consignment from another
Person;


 


(d)           that is in the
possession of a processor or bailee, or located on premises leased or subleased
to Borrower, or on premises subject to a mortgage in favor of a Person other
than Lender, unless such processor or bailee or mortgagee or the lessor or
sublessor of such premises, as the case may be, has executed and delivered all
documentation which Lender shall require to evidence the subordination or other
limitation or extinguishment of such Person’s rights with respect to such
Inventory and Lender’s right to gain access thereto;


 


(e)           that is
produced in violation of the Fair Labor Standards Act or subject to the “hot
goods” provisions contained in 29 U.S.C. §215 or any successor statute or
section;


 


(f)            as to which any
covenant, representation or warranty with respect to such Inventory contained
in the Loan Documents has been breached;


 


(g)           that is not
located in the United States unless expressly permitted by Lender, on terms
acceptable to Lender;


 


(h)           that is an Item
or is to be incorporated into Items that do not meet U.S. Content requirements
in accordance with Section 2.01 (b)(ii);


 


(i)            that is
demonstration Inventory;


 


(j)            that consists
of proprietary software (i.e. software designed solely for Borrower’s internal
use and not intended for resale);


 


(k)           that is
damaged, obsolete, returned, defective, recalled or unfit for further
processing;


 


(l)            that has been
previously exported from the United States;


 


(m)          that
constitutes, or will be incorporated into Items that constitute, defense
articles or defense services;


 


(n)           that is an Item
or will be incorporated into Items that will be used in the construction,
alteration, operation or maintenance of nuclear power, enrichment,
reprocessing, research or heavy water production facilities unless with Ex-Im
Bank’s prior written consent;


 


(o)           that is an Item
or is to be incorporated into Items destined for shipment to a country as to
which Ex-Im Bank is prohibited from doing business as designated in the Country
Limitation Schedule;


 


(p)           that is an Item
or is to be incorporated into Items destined for shipment to a Buyer located in
a country in which Ex-Im Bank coverage is not available for commercial reasons
as designated in the Country Limitation Schedule, unless and only to the extent
that such Items are to be sold to such country on terms of a letter of credit
confirmed by a bank acceptable to Ex-Im Bank;


 


6

















 


(q)           that
constitutes, or is to be incorporated into, Items whose sale would result in an
Accounts Receivable which would not be an Eligible Export-Related Accounts
Receivable;


 


(r)            that is
included as eligible inventory under any other credit facility to which
Borrower is a party; or


 


(s)           that is, or is
to be incorporated into, an Item that is a Capital Good, unless the transaction
is in accordance with Section 2.14.


 


“Eligible
Export-Related Overseas Accounts Receivable” shall mean Export-Related Overseas
Accounts Receivable which are acceptable to Lender and which are deemed to be
eligible pursuant to the Loan Documents but in no event shall include the
Accounts Receivable (a) through (bb) excluded from the definition of
Eligible Export-Related Accounts Receivable.


 


“Eligible
Export-Related Overseas Inventory” shall mean Export-Related Overseas Inventory
which is acceptable to Lender and which is deemed to be eligible pursuant to
the Loan Documents, but in no event shall include the Inventory (a) through
(r) excluded from the definition of Eligible Export-Related Inventory.


 


“Eligible
Person” shall mean a sole proprietorship, partnership, limited liability
partnership, corporation or limited liability company which (a) is
domiciled, organized or formed, as the case may be, in the United States,
whether or not such entity is owned by a foreign national or foreign entity; (b) is
in good standing in the state of its formation or otherwise authorized to
conduct business in the United States; (c) is not currently suspended or
debarred from doing business with the United States government or any
instrumentality, division, agency or department thereof; (d) exports or
plans to export Items; (e) operates and has operated as a going concern
for at least one (1) year; (f) has a positive tangible net worth
determined in accordance with GAAP; and (g) has revenue generating
operations relating to its core business activities for at least one year. An
Affiliated Foreign Person that meets all of the requirements of the foregoing
definition of Eligible Person other than subclause (a) thereof shall be
deemed to be an Eligible Person


 


“ERISA”
shall mean the Employee Retirement Income Security Act of 1974 and the rules and
regulations promulgated thereunder


 


“Export
Order” shall mean a documented purchase order or contract evidencing a Buyer’s
agreement to purchase the Items from Borrower for export from the United
States, which documentation shall include written information that is necessary
to confirm such purchase order or contract, including identification of the
Items, the name of the Buyer, the country of destination, contact information
for the Buyer and the total amount of the purchase order or contract; in the
case of Indirect Exports, such documentation shall further include a copy of
the written purchase order or contract from a foreign purchaser or other
documentation clearly evidencing a foreign purchaser’s agreement to purchase
the Items.


 


“Export-Related
Accounts Receivable” shall mean those Accounts Receivable arising from the sale
of Items which are due and payable to Borrower in the United States.


 


7
















 


“Export-Related Accounts Receivable Value” shall mean, at the date of
determination thereof, the aggregate face amount of Eligible Export-Related
Accounts Receivable less taxes, discounts, credits, allowances and Retainages,
except to the extent otherwise permitted by Ex-Im Bank in writing.


 


“Export-Related Borrowing Base” shall mean, at the date of
determination thereof, the sum of (a) (if Lender elects to include) the
Export-Related Inventory Value or Export-Related Historical Inventory Value
multiplied by the Advance Rate applicable to Eligible Export-Related Inventory
set forth in Section 5.B.(1.) of the Loan Authorization Agreement, plus (b) the
Export-Related Accounts Receivable Value multiplied by the Advance Rate
applicable to Eligible Export-Related Accounts Receivable set forth in Section 5.B.(2.)
of the Loan Authorization Agreement, plus (c) if permitted by Ex-Im Bank
in writing, the Retainage Value multiplied by the Advance Rate applicable to
Retainages set forth in Section 5.B.(3.) of the Loan Authorization
Agreement, plus (d) the Other Assets set forth in Section 5.B.(4.) of
the Loan Authorization Agreement multiplied by the Advance Rate agreed to in
writing by Ex-Im Bank, plus (e) if permitted by Ex-Im Bank in writing, the
Export-Related Overseas Accounts Receivable Value multiplied by the Advance
Rate applicable to Eligible Export-Related Overseas Accounts Receivable set
forth in Section 5.B.(5.) of the Loan Authorization Agreement, plus (f) if
permitted by Ex-Im Bank in writing, the Export-Related Overseas Inventory Value
multiplied by the Advance Rate applicable to Eligible Export-Related Overseas
Inventory set forth in Section 5.B.(6.) of the Loan Authorization
Agreement, less (g) the amounts required to be reserved pursuant to
Sections 4.12 and 4.13 of this Agreement for each outstanding Letter of Credit,
less (h) such reserves and in such amounts deemed necessary and proper by
Lender from time to time.


 


“Export-Related Borrowing Base Certificate” shall mean a certificate in
the form provided or approved by Lender, executed by Borrower and delivered to
Lender pursuant to the Loan Documents detailing the Export-Related Borrowing
Base supporting the Credit Accommodations which reflects, to the extent
included in the Export-Related Borrowing Base, Export-Related Accounts
Receivable, Eligible Export-Related Accounts Receivable, Export-Related
Inventory, Eligible Export-Related Inventory, Export-Related Overseas Accounts
Receivable, Eligible Export-Related Accounts Receivable, Export-Related Overseas
Inventory and Eligible Export-Related Overseas Inventory balances that have
been reconciled with Borrower’s general ledger, Accounts Receivable Aging
Report and Inventory schedule.


 


“Export-Related General Intangibles” shall mean the Pro Rata Percentage
of General Intangibles determined as of the earlier of: (i) the date such
General Intangibles are liquidated and (ii) the date Borrower fails to pay
when due any outstanding amount of principal or accrued interest payable under
the Loan Documents that becomes the basis for a Payment Default on which a
Claim is filed.


 


“Export-Related Historical Inventory Value” shall mean with respect to
a Borrower, the relevant Export-Related Sales Ratio multiplied by the lowest of
(i) the cost of such Borrower’s Inventory as determined in accordance with
GAAP, or (ii) the market value of such Borrower’s Inventory as determined
in accordance with GAAP or (iii) the appraised or orderly liquidation
value of such Borrower’s Inventory, if Lender has loans and financial accommodations
to such Borrower for which it conducts (or contracts for the performance of)
such an appraised or orderly liquidation value.


 


8

















 


“Export-Related Inventory” shall mean the Inventory of Borrower located
in the United States that has been purchased, manufactured or otherwise
acquired by Borrower for sale or resale as Items, or to be incorporated into
Items to be sold or resold pursuant to Export Orders.


 


“Export-Related Inventory Value” shall mean, at the date of
determination thereof, the lowest of (i) the cost of Eligible
Exported-Related Inventory as determined in accordance with GAAP, or (ii) the
market value of Eligible Export-Related Inventory as determined in accordance
with GAAP or (iii) the lower of the appraised market value or orderly
liquidation value of the Eligible Export-Related Inventory, if Lender has other
loans and financial accommodations to a Borrower for which it conducts (or
contracts for the performance of) such an appraised or orderly liquidation
value.


 


“Export-Related Overseas Accounts Receivable” shall mean those Accounts
Receivable arising from the sale of Items which are due and payable outside of
the United States either to a Borrower or an Affiliated Foreign Person.


 


“Export-Related Overseas Accounts Receivable Value” shall mean, with
respect to a Loan Facility, at the date of determination thereof, the aggregate
face amount of Eligible Export-Related Overseas Accounts Receivable less taxes,
discounts, credits, allowances and Retainages, except to the extent otherwise
permitted by Ex-Im Bank in writing.


 


“Export-Related Overseas Inventory” shall mean the Inventory of
Borrower located outside of the United States that has been purchased,
manufactured or otherwise acquired by such Borrower for sale or resale as
Items, or to be incorporated into Items to be sold or resold pursuant to Export
Orders.


 


“Export-Related Overseas Inventory Value” shall mean, at the date of
determination thereof, the lowest of (i) the cost of Eligible Export-Related
Overseas Inventory as determined in accordance with GAAP, (ii) the market
value of Eligible Export-Related Overseas Inventory as determined in accordance
with GAAP or (iii) the appraised or orderly liquidation value of the
Eligible Export-Related Overseas Inventory, if Lender has other loans and
financial accommodations to Borrower or an Affiliated Foreign Person for which
it conducts (or contracts for the performance of) such a appraised or orderly
liquidation.


 


“Export-Related Sales Ratio” shall mean with respect to a Borrower, the
percentage of such Borrower’s total sales revenue derived from the sale of
Eligible Export-Related Inventory over a rolling twelve-month period ending no
more than ninety (90) days prior to the date of the relevant Export-Related
Borrowing Base Certificate


 


“Extension” shall mean, with respect to a Loan Facility, an amendment
to the Loan Authorization Agreement extending the Final Disbursement Date on
the same terms and conditions as the Loan Facility for an aggregate period not
to exceed one hundred and twenty (120) days beyond the original Final
Disbursement Date, either as agreed to in writing by Ex-Im Bank or, in the case
of Delegated Authority, as notified by Lender to Ex-Im Bank pursuant to its
authority under the Delegated Authority Letter Agreement.


 


9

















 


“Fast Track Lender Agreement” shall mean the Fast Track Lender
Agreement, if any, between Ex-Im Bank and Lender.


 


“Final Disbursement Date” shall mean the last date on which Lender may
make a Disbursement set forth in Section 10 of the Loan Authorization
Agreement (including as amended by an Extension) or, if such date is not a
Business Day, the next succeeding Business Day; provided, however,
to the extent that Lender has not received cash collateral in the amount of the
Letter of Credit Obligations or an equivalent full indemnity from Borrower or
Guarantor, as applicable, with respect to Letter of Credit Obligations
outstanding on the Final Disbursement Date, the Final Disbursement Date with
respect to an advance to fund a drawing under such Letter of Credit shall be no
later than thirty (30) days after any such drawing which may be no later than
the expiry date of the Letter of Credit related thereto.


 


“GAAP” shall mean the generally accepted accounting principles issued
in the United States.


 


“General Intangibles” shall mean all intellectual property and other “general
intangibles” (as such term is defined in the UCC).


 


“Guarantor” shall mean any Person which is identified in Section 3
of the Loan Authorization Agreement who shall guarantee (jointly and severally
if more than one) the payment and performance of all or a portion of the Loan
Facility Obligations.


 


“Guarantee Agreement” shall mean a valid and enforceable agreement of
guarantee executed by each Guarantor in favor of Lender.


 


“Indirect Exports” shall mean finished goods or services that are sold
by a Borrower to a Buyer located in the United States, are intended for export
from the United States, and are identified in Section 4.A.(2.) of the Loan
Authorization Agreement.


 


“Inventory” shall mean all “inventory” (as such term is defined in the
UCC), now or hereafter owned or acquired by Borrower, wherever located,
including all inventory, merchandise, goods and other personal property which
are held by or on behalf of Borrower for sale or lease or are furnished or are
to be furnished under a contract of service or which constitute raw materials,
work in process or materials used or consumed or to be used or consumed in
Borrower’s business or in the processing, production, packaging, promotion,
delivery or shipping of the same, including other supplies.


 


“ISP” shall mean the International Standby Practices-ISP98,
International Chamber of Commerce Publication No. 590 and any amendments
and revisions thereof.


 


“Issuing Bank” shall mean the bank that issues a Letter of Credit,
which bank is Lender itself or a bank that Lender has caused to issue a Letter
of Credit by way of a guarantee or reimbursement obligation.


 


“Items” shall mean the finished goods or services which are intended
for export from the United States, either directly or as an Indirect Export,
meet the U.S. Content requirements in


 


10

















 


accordance with Section 2.01(b)(ii) of this Agreement and are
specified in Section 4.A. of the Loan Authorization Agreement.


 


“Letter of Credit” shall mean a Commercial
Letter of Credit or a Standby Letter of Credit.


 


“Letter of Credit Obligations” shall mean all undrawn amounts of
outstanding obligations incurred by Lender, whether direct or indirect,
contingent or otherwise, due or not due, in connection with the issuance or
guarantee by Lender or Issuing Bank of Letters of Credit.


 


“Lien” shall mean any mortgage, security deed or deed of trust, pledge,
hypothecation, assignment, deposit arrangement, lien, charge, claim, security
interest, security title, easement or encumbrance, or preference, priority or
other security agreement or preferential arrangement of any kind or nature
whatsoever (including any lease or title retention agreement, any financing
lease having substantially the same economic effect as any of the foregoing,
and the filing of, or agreement to give, any financing statement perfecting a
security interest under the UCC or comparable law of any jurisdiction) by which
property is encumbered or otherwise charged.


 


“Loan Agreement” shall mean a valid and enforceable agreement between
Lender and a Borrower setting forth, with respect to each Loan Facility, the terms
and conditions of such Loan Facility.


 


“Loan Authorization Agreement” shall mean, as applicable, the duly
executed Loan Authorization Agreement, Fast Track Loan Authorization Agreement,
or the Loan Authorization Notice, setting forth certain terms and conditions of
each Loan Facility, a copy of which is attached hereto as Annex A.


 


“Loan Authorization Notice” shall mean the Loan Authorization Notice
executed by Lender and delivered to Ex-Im Bank in accordance with the Delegated
Authority Letter Agreement setting forth the terms and conditions of each Loan
Facility.


 


“Loan Documents” shall mean the Loan Authorization Agreement, the Loan
Agreement, this Agreement, each promissory note (if applicable), each Guarantee
Agreement, and all other instruments, agreements and documents now or hereafter
executed by the applicable Borrower, any Guarantor, Lender or Ex-Im Bank
evidencing, securing, guaranteeing or otherwise relating to the Loan Facility
or any Credit Accommodations made thereunder.


 


“Loan Facility” shall mean the Revolving Loan Facility, the Transaction
Specific Loan Facility or the Transaction Specific Revolving Loan Facility
established by Lender in favor of Borrower under the Loan Documents.


 


“Loan Facility Obligations” shall mean all loans, advances, debts,
expenses, fees, liabilities, and obligations, including any accrued interest
thereon, for the performance of covenants, tasks or duties or for payment of
monetary amounts (whether or not such performance is then required or
contingent, or amounts are liquidated or determinable) owing by Borrower to
Lender, of any kind or nature, present or future, arising in connection with
the Loan Facility.


 


11

















 


“Loan Facility Term” shall mean, with respect to a Loan Facility, the
number of months or portion thereof from the Effective Date to the Final
Disbursement Date as set forth in the Loan Authorization Agreement as amended.


 


“Master Guarantee Agreement” shall mean the Master Guarantee Agreement
between Ex-Im Bank and Lender, as amended, modified, supplemented and restated
from time to time.


 


“Material Adverse Effect” shall mean a material adverse effect on (a) the
business, assets, operations, prospects or financial or other condition of
Borrower or any Guarantor, (b) any Borrower’s ability to pay or perform
the Loan Facility Obligations in accordance with the terms thereof, (c) the
Collateral or Lender’s Liens on the Collateral or the priority of such Lien, or
(d) Lender’s rights and remedies under the Loan Documents.


 


“Maximum Amount” shall mean the maximum Credit Accommodation Amount
that may be outstanding at any time under each Loan Facility, as specified in Section 5.A.
of the Loan Authorization Agreement.


 


“Other Assets” shall mean, with respect to a Loan Facility, such other
assets of a Borrower to be included in Primary Collateral, which may include
cash and marketable securities, or such other assets as Ex-Im Bank agrees to in
writing, and disclosed as Primary Collateral in Section 6.A. of the Loan
Authorization Agreement. The applicable Advance Rate (to be multiplied by the
Other Asset Value) shall be as agreed to by Ex-Im Bank in writing case by case
by case and set forth in Section 5.B.(4) of the Loan Authorization
Agreement.


 


“Other Asset Value” shall mean, with respect
to a Loan Facility, at the date of determination thereof, the value of the
Other Assets as determined in accordance with GAAP.


 


“Other Collateral” shall mean any additional collateral that Lender
customarily would require as security for loan facilities on its own account
and risk where the permitted borrowing level is based principally on a
borrowing base derived from a borrower’s inventory and accounts receivable, but
where such additional collateral does not enter into the borrowing base
calculation.


 


“Permitted Liens” shall mean (a) Liens for taxes, assessments or
other governmental charges or levies not delinquent, or, being contested in
good faith and by appropriate proceedings and with respect to which proper
reserves have been taken by Borrower; provided, that, the Lien
shall have no effect on the priority of the Liens in favor of Lender or the
value of the assets in which Lender has such a Lien and a stay of enforcement
of any such Lien shall be in effect; (b) deposits or pledges securing
obligations under worker’s compensation, unemployment insurance, social
security or public liability laws or similar legislation; (c) deposits or
pledges securing bids, tenders, contracts (other than contracts for the payment
of money), leases, statutory obligations, surety and appeal bonds and other
obligations of like nature arising in the ordinary course of Borrower’s
business; (d) judgment Liens that have been stayed or bonded; (e) mechanics’,
workers’, materialmen’s or other like Liens arising in the ordinary course of
Borrower’s business with respect to obligations which are not due; (f) Liens
placed upon fixed assets hereafter acquired to secure a portion of the purchase
price thereof, provided, that, any such Lien shall not encumber any other
property of Borrower; (g) security interests being terminated concurrently
with the execution of the Loan Documents; and (h) Liens disclosed in Section 6.D.
of the Loan


 


12

















 


Authorization Agreement, provided that, except as otherwise
permitted by Ex-Im Bank in writing, such Liens in Section 6.D. shall be
subordinate to the Liens in favor of Lender on Primary Collateral.


 


“Person” shall mean any individual, sole proprietorship, partnership,
limited liability partnership, joint venture, trust, unincorporated
organization, association, corporation, limited liability company, institution,
public benefit corporation, entity or government (whether national, federal,
provincial, state, county, city, municipal or otherwise, including any
instrumentality, division, agency, body or department thereof), and shall
include such Person’s successors and assigns.


 


“Pro Rata Percentage” shall mean, with respect to a Loan Facility, as
of the date of determination thereof, the principal balance of the Credit
Accommodations outstanding as a percentage of the combined principal balance of
all loans from Lender to such Borrower including the then outstanding principal
balance of the Credit Accommodations plus unfunded amounts under outstanding
Letters of Credit.


 


“Principals” shall mean any officer, director, owner, partner, key
employee, or other Person with primary management or supervisory
responsibilities with respect to Borrower or any other Person (whether or not
an employee) who has critical influence on or substantive control over the
transactions covered by this Agreement.


 


“Retainage” shall mean that portion of the purchase price of an Export
Order that a Buyer is not obligated to pay until the end of a specified period
of time following the satisfactory performance under such Export Order.


 


“Retainage Accounts Receivable” shall mean those portions of Eligible
Export-Related Accounts Receivable or Eligible Export-Related Overseas Accounts
Receivable arising out of a Retainage.


 


“Retainage Value” shall mean, at the date of determination thereof, the
aggregate face amount of Retainage Accounts Receivable as permitted by Ex-Im
Bank in writing, less taxes, discounts, credits and allowances, except to the
extent otherwise permitted by Ex-Im Bank in writing.


 


“Revolving Loan Facility” shall mean the credit facility or portion
thereof established by Lender in favor of Borrower for the purpose of providing
working capital in the form of loans and/or Letters of Credit to finance the manufacture,
production or purchase and subsequent export sale of Items pursuant to Loan
Documents under which Credit Accommodations may be made and repaid on a
continuous basis based solely on credit availability on the Export-Related
Borrowing Base during the term of such credit facility


 


“Special Conditions” shall mean those conditions, if any, set forth in Section 13
of the Loan Authorization Agreement.


 


“Specific Export Orders” shall mean those Export Orders specified in Section 5.D.
of the Loan Authorization Agreement as applicable for a Transaction Specific
Revolving Loan Facility or a Transaction Specific Loan Facility.


 


13

















 


“Standby Letters of Credit” shall mean those letters of credit subject
to the ISP or UCP issued or caused to be issued by Lender for Borrower’s
account that can be drawn upon by a Buyer only if Borrower fails to perform all
of its obligations with respect to an Export Order.


 


“Transaction Specific Loan Facility” shall mean a credit facility or a
portion thereof established by Lender in favor of Borrower for the purpose of
providing working capital in the form of loans and/or Letters of Credit to
finance the manufacture, production or purchase and subsequent export sale of
Items pursuant to Loan Documents under which Credit Accommodations are made
based solely on credit availability on the Export-Related Borrowing Base
relating to Specific Export Orders and once such Credit Accommodations are
repaid they may not be reborrowed.


 


“Transaction Specific Revolving Loan Facility” shall mean a Revolving
Credit Facility established to provide financing of Specific Export Orders.


 


“UCC” shall mean the Uniform Commercial Code, as the same may be in
effect from time to time in the relevant United States jurisdiction. 


 


“UCP” shall mean the Uniform Customs and Practice for Documentary
Credits (1993 Revision), International Chamber of Commerce Publication No. 500
and any amendments and revisions thereof.


 


“U.S.” or “United States” shall mean the United States of America
including any division or agency thereof (including United States embassies or
United States military bases located overseas), and any United States Territory
(including without limitation, Puerto Rico, Guam or the United States Virgin Islands).


 


“U.S. Content” shall mean, with respect to any Item, all the costs,
including labor, materials, services and overhead, but not markup or profit
margin, which are of U.S. origin or manufacture, and which are incorporated
into an Item in the United States.


 


“Warranty” shall mean Borrower’s guarantee to Buyer that the Items will
function as intended during the warranty period set forth in the applicable
Export Order.


 


“Warranty Letter of Credit” shall mean a Standby Letter of Credit which
is issued or caused to be issued by Lender to support the obligations of
Borrower with respect to a Warranty or a Standby Letter of Credit which by its
terms becomes a Warranty Letter of Credit.


 


1.02         Rules of
Construction. For purposes of this Agreement, the following additional rules of
construction shall apply, unless specifically indicated to the contrary: (a) wherever
from the context it appears appropriate, each term stated in either the
singular or plural shall include the singular and the plural, and pronouns stated
in the masculine, feminine or neuter gender shall include the masculine, the
feminine and the neuter; (b) the term “or” is not exclusive; (c) the
term “including” (or any form thereof) shall not be limiting or exclusive; (d) all
references to statutes and related regulations shall include any amendments of
same and any successor statutes and regulations; (e) the words “this
Agreement”, “herein”, “hereof”, “hereunder” or other words of similar import
refer to this Agreement as a whole including the schedules, exhibits, and
annexes


 


14

















 


hereto as the same may be amended, modified or supplemented; (f) all
references in this Agreement to sections, schedules, exhibits, and annexes
shall refer to the corresponding sections, schedules, exhibits, and annexes of
or to this Agreement; and (g) all references to any instruments or
agreements, including references to any of the Loan Documents, the Delegated
Authority Letter Agreement, or the Fast Track Lender Agreement shall include
any and all modifications, amendments and supplements thereto and any and all
extensions or renewals thereof to the extent permitted under this Agreement.


 


1.03         Incorporation of
Recitals. The Recitals to this Agreement are incorporated into and shall
constitute a part of this Agreement.


 


ARTICLE II


OBLIGATIONS OF BORROWER


 


Until payment in full of all Loan Facility Obligations and termination
of the Loan Documents, Borrower agrees as follows:


 


2.01         Use of Credit
Accommodations. (a) Borrower shall use Credit Accommodations only for
the purpose of enabling Borrower to finance the cost of manufacturing,
producing, purchasing or selling the Items. Borrower may not use any of the
Credit Accommodations for the purpose of: (i) servicing or repaying any of
Borrower’s pre-existing or future indebtedness unrelated to the Loan Facility
unless approved by Ex-Im Bank in writing; (ii) acquiring fixed assets or
capital assets for use in Borrower’s business; (iii) acquiring, equipping
or renting commercial space outside of the United States; (iv) paying the
salaries of non U.S. citizens or non-U.S. permanent residents who are located
in offices outside of the United States; or (v) in connection with a
Retainage or Warranty unless approved by Ex-Im Bank in writing.


 


(b)           In addition, no
Credit Accommodation may be used to finance the manufacture, purchase or sale
of any of the following:


 


(i)            Items to be sold to
a Buyer located in a country as to which Ex-Im Bank is prohibited from doing
business as designated in the Country Limitation Schedule;


 


(ii)           that part of the
cost of the Items which is not U.S. Content unless such part is not greater
than fifty percent (50%) of the cost of the Items and is incorporated into the
Items in the United States;


 


(iii)          defense articles or
defense services;


 


(iv)          Capital Goods unless
in accordance with Section 2.14 of this Agreement; or


 


(v)           without Ex-Im Bank’s
prior written consent, any Items to be used in the construction, alteration,
operation or maintenance of nuclear power, enrichment, reprocessing, research
or heavy water production facilities.


 


2.02         Security Interests.
Borrower agrees to cooperate with Lender in any steps Lender shall take to file
and maintain valid, enforceable and perfected security interests in the Collateral.


 


15

















 


2.03         Loan Documents and
Loan Authorization Agreement. (a) This Agreement and each of the other
Loan Documents applicable to Borrower have been duly executed and delivered on
behalf of Borrower, and are and will continue to be legal and valid obligations
of Borrower, enforceable against it in accordance with its terms.


 


(b)           Borrower
shall comply with all of the terms and conditions of this Agreement, the Loan
Authorization Agreement and each of the other Loan Documents to which it is a
party.


 


(c)           Borrower
hereby represents and warrants to Lender that Borrower is an Eligible Person.


 


2.04         Export-Related
Borrowing Base Certificates and Export Orders. (a) In order to receive
Credit Accommodations under the Loan Facility, Borrower shall have delivered to
Lender an Export-Related Borrowing Base Certificate as frequently as required
by Lender but at least within the past month, together with a copy of the
Export Order(s) or, for Revolving Loan Facilities, if permitted by Lender,
a written summary of the Export Orders (when Eligible Export-Related Inventory
and Eligible Overseas Export-Related Inventory are entering the Export-Related
Borrowing Base) against which Borrower is requesting Credit Accommodations. In
addition, so long as there are any Credit Accommodations outstanding under the
Loan Facility, Borrower shall deliver to Lender an Export-Related Borrowing
Base Certificate at least once each month. Lender shall determine if daily
electronic reporting reconciled monthly may substitute for monthly
Export-Related Borrowing Base Certificates. If the Lender requires an
Export-Related Borrowing Base Certificate more frequently, Borrower shall
deliver such Export-Related Borrowing Base Certificate as required by Lender.


 


(b)           If Lender permits
summaries of Export Orders, Borrower shall also deliver promptly to Lender
copies of any Export Orders requested by Lender.


 


2.05         Schedules,
Reports and Other Statements. With the delivery of each Export-Related
Borrowing Base Certificate required in Section 2.04 above, Borrower shall
submit to Lender in writing (a) an Inventory schedule for the preceding
month, as applicable, and (b) an Accounts Receivable Aging Report for the
preceding month. Borrower shall also furnish to Lender promptly upon request
such information, reports, contracts, invoices and other data concerning the
Collateral as Lender may from time to time specify.


 


2.06         Exclusions from
the Export-Related Borrowing Base. In determining the Export-Related Borrowing
Base, Borrower shall exclude therefrom Inventory which are not Eligible
Export-Related Inventory or Eligible Export-Related Overseas Inventory and
Accounts Receivable which are not Eligible Export-Related Accounts Receivable
or Eligible Export-Related Overseas Accounts Receivable. Borrower shall
promptly, but in any event within five (5) Business Days, notify Lender (a) if
any then existing Export-Related Inventory or Export-Related Overseas Inventory
no longer constitutes Eligible Export-Related Inventory or Eligible
Export-Related Overseas Inventory, as applicable or (b) of any event or
circumstance which to Borrower’s knowledge would cause Lender to consider any
then existing Export-Related Accounts Receivable or Export-Related Overseas
Accounts Receivable as no longer constituting an Eligible Export-Related
Accounts Receivable or Eligible Export-Related Overseas Accounts Receivable, as
applicable.


 


16

















 


2.07         Borrowings and
Reborrowings. (a) If the Loan Facility is a Revolving Loan Facility or
Transaction Specific Revolving Loan Facility, provided that Borrower is
not in default under any of the Loan Documents, Borrower may borrow, repay and
reborrow amounts under such Loan Facility up to the credit available on the
current Export-Related Borrowing Base Certificate subject to the terms of this
Agreement and each of the other Loan Documents until the close of business on
the Final Disbursement Date.


 


(b)           If the Loan Facility
is a Transaction Specific Loan Facility, provided that Borrower is not
in default under any of the Loan Documents, Borrower may borrow (but not
reborrow) amounts under the Loan Facility up to the credit available on the
current Export-Related Borrowing Base Certificate subject to the terms of this
Agreement and each of the other Loan Documents until the close of business on
the Final Disbursement Date.


 


2.08         Repayment Terms.
(a) The Borrower on a Revolving Loan Facility shall pay in full the
outstanding Loan Facility Obligations no later than the first Business Day
after the Final Disbursement Date unless such Loan Facility is renewed or
extended by Lender consistent with procedures required by Ex-Im Bank.


 


(b)           The Borrower on a
Transaction Specific Loan Facility and a Transaction Specific Revolving Loan
Facility shall, within two (2) Business Days of the receipt thereof, pay
to Lender (for application against the outstanding Loan Facility Obligations)
all checks, drafts, cash and other remittances it may receive in payment or on
account of the Export-Related Accounts Receivable, Export-Related Overseas
Accounts Receivable or any other Collateral, in precisely the form received
(except for the endorsement of Borrower where necessary). Pending such deposit,
Borrower shall hold such amounts in trust for Lender separate and apart and
shall not commingle any such items of payment with any of its other funds or
property. Unless a Transaction Specific Loan Facility or Transaction Specific
Revolving Loan Facility is renewed or extended by Lender consistent with
procedures required by Ex-Im Bank, Borrower shall pay in full all outstanding
Loan Facility Obligations no later than the first Business Day after the Final
Disbursement Date, except for Eligible Export-Related Accounts Receivables and
Eligible Export-Related Overseas Accounts Receivable outstanding as of the
Final Disbursement Date and due and payable after such date, for which the
principal and accrued and unpaid interest thereon shall be due and payable no
later than the first Business Day after the date such Accounts Receivable are
due and payable.


 


2.09         Financial
Statements. Borrower shall deliver to Lender the financial statements
required to be delivered by Borrower in accordance with Section 11 of the
Loan Authorization Agreement.


 


2.10         Additional
Security or Payment. (a) Borrower shall at all times ensure that the
Export-Related Borrowing Base equals or exceeds the aggregate outstanding
amount of Disbursements. If informed by Lender or if Borrower otherwise has
actual knowledge that the Export-Related Borrowing Base is at any time less
than the aggregate outstanding amount of Disbursements, Borrower shall, within
five (5) Business Days, either (i) furnish additional Collateral to
Lender, in form and amount satisfactory to Lender and Ex-Im Bank or (ii) pay
to Lender an amount equal to the difference between the aggregate outstanding
amount of Disbursements and the Export-Related Borrowing Base.


 


17

















 


(b)           For
purposes of this Agreement, in determining the Export-Related Borrowing Base
there shall be deducted from the Export-Related Borrowing Base an amount equal
to (i) twenty-five percent (25%) of the undrawn amount of outstanding
Commercial Letters of Credit and Standby Letters of Credit and (ii) one
hundred percent (100%) of the undrawn amount of outstanding Warranty Letters of
Credit less the amount of cash collateral held by Lender to secure
Warranty Letters of Credit.


 


(c)           Unless
otherwise approved in writing by Ex-Im Bank, for Revolving Loan Facilities
(other than Transaction Specific Revolving Loan Facilities), Borrower shall at
all times ensure that the sum of the outstanding amount of Disbursements and
the undrawn amount of outstanding Commercial Letters of Credit that is
supported by Eligible Export-Related Inventory or Eligible Export-Related
Overseas Inventory (discounted by the relevant Advance Rate percentages) in the
Export-Related Borrowing Base does not exceed sixty percent (60%) of the sum of
the total outstanding amount of Disbursements and the undrawn amount of all
outstanding Commercial Letters of Credit. If informed by Lender or if Borrower
otherwise has actual knowledge that the sum of the outstanding amount of
Disbursements and the undrawn amount of outstanding Commercial Letters of
Credit that is supported by such Inventory exceeds sixty percent (60%) of the
sum of the total outstanding Disbursements and the undrawn amount of all
outstanding Commercial Letters of Credit, Borrower shall, within five (5) Business
Days, either (i) furnish additional non-Inventory Collateral to Lender, in
form and amount satisfactory to Lender and Ex-Im Bank, or (ii) pay down
the applicable portion of the outstanding Disbursements or (iii) reduce
the undrawn amount of outstanding Commercial Letters of Credit such that the
above described ratio is not exceeded.


 


(d)           If
informed by Lender or if Borrower otherwise has actual knowledge that the
conditions of Section 2.16(g) are at any time not being met, Borrower
shall, within five (5) Business Days, either (i) furnish additional
Collateral to Lender that is not Eligible Export-Related Overseas Accounts
Receivable or Eligible Export-Related Overseas Inventory, in form and amount
satisfactory to Lender and Ex-Im Bank, or (ii) remove from the
Export-Related Borrowing Base the portion of Eligible Export-Related Overseas
Accounts Receivable or Eligible Export-Related Overseas Inventory that supports
greater than fifty percent (50%) of the Export-Related Borrowing Base.


 


2.11         Continued Security
Interest. Borrower shall not change (a) its name or identity in any
manner, (b) the location of its principal place of business or its
jurisdiction of organization or formation, (c) the location of any of the
Collateral or (d) the location of any of the books or records related to
the Collateral, in each instance without giving thirty (30) days prior written
notice thereof to Lender and taking all actions deemed necessary or appropriate
by Lender to continuously protect and perfect Lender’s Liens upon the
Collateral.


 


2.12         Inspection of
Collateral and Facilities. (a) Borrower shall permit the
representatives of Lender and Ex-Im Bank to make at any time during normal
business hours inspections of the Collateral and of Borrower’s facilities,
activities, and books and records, and shall cause its officers and employees
to give full cooperation and assistance in connection therewith.


 


(b)           Borrower agrees to
facilitate Lender’s conduct of field examinations at Borrower’s facilities in
accordance with the time schedule and content for such examinations


 


18

















 


that Lender requests. Such field examinations shall address at a
minimum: (x) the value of the Collateral against which Credit
Accommodations may be provided, (y) the amount, if any, that the aggregate
outstanding amount of Disbursements exceeds the Export-Related Borrowing Base
and (z) whether such Borrower is in material compliance with the terms of
each of the Loan Documents. Such field examinations shall include an inspection
and evaluation of the Export-Related Inventory and Export-Related Overseas
Inventory, a book audit of Export-Related Accounts Receivable and
Export-Related Overseas Accounts Receivable, a review of the Accounts
Receivable Aging Reports and a review of Borrower’s compliance with any Special
Conditions. Lenders who opt to use the Export-Related Historical Inventory
Value in the Export-Related Borrowing Base calculation shall reconcile those
numbers against the calculation for the relevant time periods using the
Export-Related Inventory Value. Whenever Export-Related Accounts Receivable or
Export-Related Inventory derived from Indirect Exports are in the
Export-Related Borrowing Base, Lender shall verify compliance with Section 2.15
herein, including taking a random sampling of ultimate foreign purchasers.


 


2.13         General
Intangibles. Borrower represents and warrants that it owns, or is licensed
to use, all General Intangibles necessary to conduct its business as currently
conducted except where the failure of Borrower to own or license such General
Intangibles could not reasonably be expected to have a Material Adverse Effect.


 


2.14         Economic Impact
Approval. (a) For Loan Facilities up to and including $10 million,
Borrower acknowledges that Capital Goods may not be included as Items, and
Export-Related Inventory, Export-Related Overseas Inventory, Export-Related
Accounts Receivable and Export-Related Overseas Accounts Receivable in
connection with the sale of such Capital Goods may not be included in the
Export-Related Borrowing Base, if such Capital Goods would enable a foreign
buyer to establish or expand production of a product where, as of the date of
the Economic Impact Certification covering such Item: (i) the Buyer is
subject to a Final Anti-Dumping (AD) or Countervailing Duty (CVD) order, or a
Suspension Agreement arising from a AD or CVD investigation, and such product
is substantially the same as the product that is the subject of the AD/CVD
order or suspension agreement; or (ii) the Buyer is the subject of a Section 201
injury determination by the International Trade Commission (“ITC”) and such
product is substantially the same as a product that is the subject of the ITC
injury determination. Borrower may consult with Ex-Im Bank regarding the
appropriate application of this Section 2.14(a) and may, at its
option, request that Ex-Im Bank issue an Economic Impact Approval covering any
Items listed in Section 4.A. of the Loan Authorization Agreement. For Loan
Facilities over $10 million involving Items that are Capital Goods, Borrower
shall obtain from Ex-Im Bank, and abide by, an Economic Impact Approval
covering all Items listed in Section 4(A) of the Loan Authorization
Agreement.


 


(b) Borrower shall provide Lender with a certification in the form
of Annex B (an “Economic Impact Certification”) covering the Items stated in Section 4(A) of
the Loan Authorization Agreement prior to Lender including such Items in the
Loan Authorization Agreement. Prior to Lender amending the Loan Authorization
Agreement to include additional Items, Borrower shall provide Lender with an
additional Economic Impact Certification covering such additional Items.


 


2.15         Indirect Exports.
Indirect Exports may be included as Items in a Loan Facility provided that
funds available under such Loan Facility’s Export-Related Borrowing Base


 


19

















 


supported by Accounts Receivable and Inventory derived from Indirect
Exports at no time exceed ten percent (10%) of the Maximum Amount of such Loan
Facility, and provided, further  that (a) the ultimate foreign buyer for
the Items must be located in a country in which Ex-Im Bank is not
legally prohibited from doing business in accordance with the Country
Limitation Schedule, and (b) the Borrower must make available to Lender
verifiable evidence of intent to export the Indirect Exports from the United
States, which evidence may be contained in the Export Orders and Accounts
Receivable Aging Reports and supporting documents. Lender must obtain written
consent from Ex-Im Bank prior to including funds derived from Indirect Exports
in an Export-Related Borrowing Base above the ten percent (10%) threshold.


 


2.16         Overseas Inventory
and Accounts Receivable. Upon the prior written consent of Ex-Im Bank,
Export-Related Overseas Accounts Receivable and Export-Related Overseas
Inventory of a Borrower or of an Affiliated Foreign Person (as defined below)
may be included in the Export-Related Borrowing Base provided that conditions
required by Ex-Im Bank, including the following, are met:


 


(a)           the
Affiliated Foreign Person, if any, has been approved by Ex-Im Bank;


 


(b)           the
Affiliated Foreign Person, if any, is a Borrower under the relevant Loan
Facility;


 


(c)           notwithstanding
the Maximum Amount of the Loan Facility, all payments due and payable on such
Export-Related Overseas Accounts Receivable are collected through a cash
collateral account under Lender’s control;


 


(d)           as
of the Effective Date, or such later date when the Export-Related Overseas
Accounts Receivable and/or Export-Related Overseas Inventory are added to the
Loan Facility, Lender has obtained a valid and enforceable first priority Lien
in the Export-Related Overseas Accounts Receivable and Export-Related Overseas
Inventory, as applicable;


 


(e)           as
of the Effective Date, or such later date when the Export-Related Overseas
Accounts Receivable and/or Export-Related Overseas Inventory are added to the
Loan Facility, Lender has obtained a legal opinion confirming the security
interest in the Export-Related Overseas Accounts Receivable and Export-Related
Overseas Inventory;


 


(f)            the
Export-Related Overseas Accounts Receivable are due and payable in United
States Dollars or other currency acceptable to Ex-Im Bank; and


 


(g)           at
no time may the portion of the Export-Related Borrowing Base derived from
Eligible Export-Related Overseas Accounts Receivable and Eligible
Export-Related Overseas Inventory exceed fifty percent (50%) of the
Export-Related Borrowing Base.


 


For purposes hereof, an “Affiliated Foreign Person” shall mean a subsidiary
or affiliate of a Borrower on the same Loan Facility, which has duly executed
as a Borrower all of the applicable Loan Documents and any other documents
required by

Ex-Im Bank, meets all of the requirements of the definition of Eligible Person
other than subclause (a) thereof and is in good standing in the country of
its formation or otherwise authorized to conduct business in such country.


 


20

















 


2.17         Country Limitation
Schedule. Unless otherwise informed in writing by Lender or Ex-Im Bank,
Borrower shall be entitled to rely on the last copy of the Country Limitation
Schedule distributed from Lender to Borrower.


 


2.18         Notice of Certain
Events. Borrower shall promptly, but in any event within five (5) Business
Days, notify Lender in writing of the occurrence of any of the following:


 


(a)           Borrower or any
Guarantor (i) applies for, consents to or suffers the appointment of, or
the taking of possession by, a receiver, custodian, trustee, liquidator or
similar fiduciary of itself or of all or a substantial part of its property or
calls a meeting of its creditors, (ii) admits in writing its inability, or
is generally unable, to pay its debts as they become due or ceases operations
of its present business, (iii) makes a general assignment for the benefit
of creditors, (iv) commences a voluntary case under any state or federal
bankruptcy laws (as now or hereafter in effect), (v) is adjudicated as
bankrupt or insolvent, (vi) files a petition seeking to take advantage of
any other law providing for the relief of debtors, (vii) acquiesces to, or
fails to have dismissed within thirty (30) days, any petition filed against it
in any involuntary case under such bankruptcy laws, or (vii) takes any
action for the purpose of effecting any of the foregoing;


 


(b)           any Lien in any of
the Collateral, granted or intended by the Loan Documents to be granted to
Lender, ceases to be a valid, enforceable, perfected, first priority Lien (or a
lesser priority if expressly permitted pursuant to Section 6 of the Loan
Authorization Agreement) subject only to Permitted Liens;


 


(c)           the issuance of any
levy, assessment, attachment, seizure or Lien, other than a Permitted Lien,
against any of the Collateral which is not stayed or lifted within thirty (30)
calendar days;


 


(d)           any proceeding is
commenced by or against Borrower or any Guarantor for the liquidation of its
assets or dissolution;


 


(e)           any litigation is
filed against Borrower or any Guarantor which has had or could reasonably be
expected to have a Material Adverse Effect and such litigation is not withdrawn
or dismissed within thirty (30) calendar days of the filing thereof;


 


(f)            any default or
event of default under the Loan Documents;


 


(g)           any failure to
comply with any terms of the Loan Authorization Agreement;


 


(h)           any material
provision of this Agreement or any other Loan Document for any reason ceases to
be valid, binding and enforceable in accordance with its terms;


 


(i)            any event which has
had or could reasonably be expected to have a Material Adverse Effect; or


 


(j)            the aggregate
outstanding amount of Disbursements exceeds the applicable Export-Related
Borrowing Base.


 


21

















 


2.19         Insurance.
Borrower will at all times carry property, liability and other insurance, with
insurers acceptable to Lender, in such form and amounts, and with such
deductibles and other provisions, as Lender shall require, and Borrower will
provide evidence of such insurance to Lender on the proper Acord Form, so that
Lender is satisfied that such insurance is, at all times, in full force and
effect. Each property insurance policy shall name Lender as loss payee or
mortgagee and shall contain a lender’s loss payable endorsement in form
acceptable to Lender and each liability insurance policy shall name Lender as
an additional insured. All policies of insurance shall provide that they may
not be cancelled or changed without at least thirty (30) days’ prior written
notice to Lender and shall otherwise be in form and substance satisfactory to
Lender. Borrower will promptly deliver to Lender copies of all reports made to
insurance companies.


 


2.20         Taxes.
Borrower has timely filed all tax returns and reports required by applicable
law, has timely paid all applicable taxes, assessments, deposits and
contributions owing by Borrower and will timely pay all such items in the
future as they became due and payable. Borrower may, however, defer payment of
any contested taxes; provided, that Borrower (a) in good faith contests
Borrower’s obligation to pay such taxes by appropriate proceedings promptly and
diligently instituted and conducted; (b) notifies Lender in writing of the
commencement of, and any material development in, the proceedings; (c) posts
bonds or takes any other steps required to keep the contested taxes from
becoming a Lien upon any of the Collateral; and (d) maintains adequate
reserves therefore in conformity with GAAP.


 


2.21         Compliance with
Laws. Borrower represents and warrants that it has complied in all material
respects with all provisions of all applicable laws and regulations, including
those relating to Borrower’s ownership of real or personal property, the
conduct and licensing of Borrower’s business, the payment and withholding of
taxes, ERISA and other employee matters, safety and environmental matters.


 


2.22         Negative Covenants.
Without the prior written consent of Ex-Im Bank and Lender, Borrower shall not:
(a) merge, consolidate or otherwise combine with any other Person; (b) acquire
all or substantially all of the assets or capital stock of any other Person; (c) sell,
lease, transfer, convey, assign or otherwise dispose of any of its assets,
except for the sale of Inventory in the ordinary course of business and the
disposition of obsolete equipment in the ordinary course of business; (d) create
any Lien on the Collateral except for Permitted Liens; (e) make any
material changes in its organizational structure or identity; or (f) enter
into any agreement to do any of the foregoing.


 


2.23         Cross Default.
Borrower shall be deemed in default under the Loan Facility if Borrower fails
to pay when due any amount payable to Lender under any loan or other credit
accommodations to Borrower whether or not guaranteed by Ex-Im Bank.


 


2.24         Munitions List.
If any of the Items are articles, services, or related technical data that are
listed on the United States Munitions List (part 121 of title 22 of the Code of
Federal Regulations), Borrower shall send a written notice promptly, but in any
event within five (5) Business Days, of Borrower learning thereof to
Lender describing the Items(s) and the corresponding invoice amount.


 


2.25         Suspension and
Debarment, etc. On the date of this Agreement neither Borrower nor its
Principals are (a) debarred, suspended, proposed for debarment with a
final determination


 


22

















 


still pending, declared ineligible or voluntarily excluded (as such
terms are defined under any of the Debarment Regulations referred to below)
from participating in procurement or nonprocurement transactions with any
United States federal government department or agency pursuant to any of the
Debarment Regulations or (b) indicted, convicted or had a civil judgment
rendered against Borrower or any of its Principals for any of the offenses
listed in any of the Debarment Regulations. Unless authorized by Ex-Im Bank,
Borrower will not knowingly enter into any transactions in connection with the
Items with any person who is debarred, suspended, declared ineligible or
voluntarily excluded from participation in procurement or nonprocurement
transactions with any United States federal government department or agency
pursuant to any of the Debarment Regulations. Borrower will provide immediate
written notice to Lender if at any time it learns that the certification set
forth in this Section 2.24 was erroneous when made or has become erroneous
by reason of changed circumstances.


 


ARTICLE III

RIGHTS AND REMEDIES


 


3.01         Indemnification.
Upon Ex-Im Bank’s payment of a Claim to Lender in connection with the Loan
Facility pursuant to the Master Guarantee Agreement, Ex-Im Bank may assume all
rights and remedies of Lender under the Loan Documents and may enforce any such
rights or remedies against Borrower, the Collateral and any Guarantors. Borrower
shall hold Ex-Im Bank and Lender harmless from and indemnify them against any
and all liabilities, damages, claims, costs and losses incurred or suffered by
either of them resulting from (a) any materially incorrect certification
or statement knowingly made by Borrower or its agent to Ex-Im Bank or Lender in
connection with the Loan Facility, this Agreement, the Loan Authorization
Agreement or any other Loan Documents or (b) any material breach by
Borrower of the terms and conditions of this Agreement, the Loan Authorization
Agreement or any of the other Loan Documents. Borrower also acknowledges that
any statement, certification or representation made by Borrower in connection
with the Loan Facility is subject to the penalties provided in Article 18
U.S.C. Section 1001.


 


3.02         Liens.
Borrower agrees that any and all Liens granted by it to Lender are also hereby
granted to Ex-Im Bank to secure Borrower’s obligation, however arising, to
reimburse Ex-Im Bank for any payments made by Ex-Im Bank pursuant to the Master
Guarantee Agreement. Lender is authorized to apply the proceeds of, and
recoveries from, any property subject to such Liens to the satisfaction of Loan
Facility Obligations in accordance with the terms of any agreement between
Lender and Ex-Im Bank.


 


23
















 


ARTICLE IV

MISCELLANEOUS


 


4.01         Governing Law.
This Agreement and the obligations arising under this Agreement shall be
governed by, and construed in accordance with, the law of the state governing
the Loan Agreement.


 


4.02         Notification.
All notices required by this Agreement shall be given in the manner and to the
parties provided for in the Loan Agreement.


 


4.03         Partial Invalidity.
If at any time any of the provisions of this Agreement becomes illegal, invalid
or unenforceable in any respect under the law of any jurisdiction, neither the
legality, the validity nor the enforceability of the remaining provisions
hereof shall in any way be affected or impaired.


 


4.04         Waiver of Jury
Trial. BORROWER HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ANY
AND ALL RIGHTS IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY ACTION,
SUIT, PROCEEDING OR OTHER LITIGATION BROUGHT TO RESOLVE ANY DISPUTE ARISING
UNDER, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, THE LOAN
AUTHORIZATION AGREEMENT, ANY LOAN DOCUMENT, OR ANY OTHER AGREEMENT, DOCUMENT OR
INSTRUMENT EXECUTED OR DELIVERED IN CONNECTION HEREWITH OR THEREWITH OR ANY
COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN),
OR ACTIONS OR OMISSIONS OF LENDER, EX-IM BANK, OR ANY OTHER PERSON, RELATING TO
THIS AGREEMENT, THE LOAN AUTHORIZATION AGREEMENT OR ANY OTHER LOAN DOCUMENT.


 


4.05         Consequential
Damages. Neither Ex-Im Bank, Lender nor any agent or attorney for any of
them shall be liable to Borrower for consequential damages arising from any
breach of contract, tort or other wrong relating to the establishment,
administration or collection of the Loan Facility Obligations.


 


24

















 


IN WITNESS
WHEREOF, Borrower has caused this Agreement to be duly executed as of the
     day of
              ,
         .


 


 


	
  Brian E. LeClair

  	
   

  
	
   

  	
  (Name of Borrower)

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ Brian E. LeClair

  	
   

  
	
   

  	
  (Signature)

  	
   

  
	
   

  	
   

  
	
  Name:

  	
  Brian E. LeClair

  	
   

  
	
   

  	
   (Print or Type)

  	
   

  
	
   

  	
   

  
	
  Title:

  	
  Executive V.P. and CFO

  	
   

  
	
   

  	
  (Print or Type)

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  ACKNOWLEDGED:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Mark Sperling

  	
   

  
	
   

  	
  (Name of Lender)

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ Mark Sperling

  	
   

  
	
   

  	
  (Signature)

  	
   

  
	
   

  	
   

  
	
  Name:

  	
  Mark Sperling

  	
   

  
	
   

  	
  (Print or Type)

  	
   

  
	
   

  	
   

  
	
  Title:

  	
  Vice President

  	
   

  
	
   

  	
  (Print or Type)

  	
   

  
							



 


25

















 


ANNEXES:


 


	
  Annex A

  	
   

  	
  - Loan Authorization Agreement, Fast Track Loan Authorization
  Agreement or Loan Authorization Notice, as applicable

  
	
  Annex B

  	
   

  	
  - Economic Impact Certification

  



 


26

















 


CONSENT OF GUARANTORS


 


Each of the undersigned as a Guarantor of the
obligations of Borrower to the Lender executing the foregoing Agreement hereby
agrees that the foregoing Agreement, each of their respective Guarantee
Agreements and each other Loan Documents may be assigned to the Export-Import
Bank of the United States.


 


 


	
   

  	
   

  
	
   

  	
  [INDIVIDUAL GUARANTOR]

  
	
   

  	
   

  
	
   

  	
  [CORPORATE GUARANTOR]

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
					



 


27